LGJ: Jack Thompson's Utah 'game bill'

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

Right on cue, after this week's previous LGJ, Jack Thompson's Utah bill finally made its public appearance. Surprisingly, the bill amounts to only 4 lines of text that will be edited into Utah's existing Truth in Advertising Act, a form of deceptive trade practice regulation. The entire relevant text of the statute is:

13-11a-3. Deceptive trade practices enumerated -- Records to be kept -- Defenses.

(1) Deceptive trade practices occur when, in the course of a person's business, vocation, or occupation that person:

(u) (i) advertises that the person will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation; and

(ii) sells that good or service to a person under the age restriction or recommendation.

So what does this mean for the industry? I believe this bill has far more bark than bite, but it's more complex than a simple analogy. There are some potential consequences for electronic retailers based on this new potential regulation, but it also looks like this provision leaves a number of major loopholes that retailers can take advantage of. As the bill hasn't passed yet, this all may be moot if the Utah legislature opts against the regulation, but it's certainly worth analyzing in the interim.

To begin, let's look at what the bill is actually attempting to do: prevent the sale of M-rated games to those under 17. Arguably, it also aims to keep AO-rated games away from minors, though there aren't any of those games to speak of; and it could be used to keep T-rated games away from those under 13, but it's generally impossible to advertise that you check IDs for those games since most people have no age verifying ID until at least 15. The means of accomplishing this goal is this statute, in summary: if your store advertises that it doesn't sell age labeled products to minors, then it's a deceptive trade practice to do so.

Interestingly, this particular bill doesn't just target games; it targets movies as well. After all, movies with ratings have age restrictions or age recommendations. Music is more of an argument at best, since the "Parental Advisory" contains no specific age advisory. So, if your store advertises a policy that you won't sell these products to minors, and then sells those products to minors, you can be held liable for a deceptive trade practice. This, at least in theory, gets around the common hurdles of regulating content and giving content regulating authority to a non-governmental body. It simply attacks retail policy and advertisement. This seems straightforward enough, but here's where the loopholes come into play. Of course, the courts may interpret these differently, but by a strict reading of the statute, the following would work:

Loophole 1: Don't advertise the policy
This is a pretty straightforward solution. This law can only apply if your policy is advertised. So, simply remove the policy from all public view and instruct your employees that they are not to sell to minors but are also not to repeat the policy to customers. After all, it's a private business and you can choose to not enter into any transaction at any time, for any reason.

Loophole 2: Change your policy from "will" to "may"
Another easy solution is to alter your store policy to say you "may" require ID to purchase titles with age restrictions. You're not advertising that you "will" do so and, therefore, you are not acting within the bounds of this statute.

Loophole 3: Evidence
The third loophole comes into play upon reading the rest of 13-11a-3. Many other practices have certain types of prima facie evidence, which has been neglected in this case. Prima facie evidence is evidence which automatically proves what is alleged unless it's disproven by the defendant. So, in order to go forward with a suit here, the plaintiff (which can be a person or the state of Utah under this statute) would have to have evidence that the store advertised this policy but did not enforce it. I can only imagine that certain people would go to great lengths to document these transactions in order to bring suit, but something as simple as a receipt for a game wouldn't be enough. In fact, simply putting an age gate into the point of sale system where the clerk has to enter a date of birth, which would then go on the receipt, would be an excellent defense. It would be interesting to see if someone presenting false identification could even bring suit, given that they are committing a crime in the process.

The simple solution: If advertising that your store in Utah doesn't sell to minors is an important selling point, then your store will have to implement policies to hold clerks accountable for the sales. On the other hand, if this isn't a major concern, then the door seems wide open to bypass this regulation completely. I really can't say if the courts would hold this provision as a guised means to chill free speech, which would negate the bill entirely, but I'm also not entirely sure that is a major concern considering how easy it could be to get around the bill. Given the amount of hype that surrounded this bill before it was introduced, I think a lot of people in the game industry may be underwhelmed at its actual effect on their business. It will be interesting to see how this plays out, and whether other states might pass similar laws if the one in Utah goes unchallenged or is actually successful if and when challenged. Of course, that does pose the question: With its limited a scope, can this kind of bill really change much? Based on the last FTC report, perhaps the movie industry should be more worried than the video game industry.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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